Everything you need to know about flexible working requests

One of the biggest changes to come out of the pandemic in terms of the way we work is the increase in employees considering flexible working hours.

Whether the idea of flexible working is attractive for childcare reasons or simply to ensure a better work/life balance, it’s important that employees and employers alike consider the legal obligations when approaching flexible working requests.

Can anyone make a flexible working request?

Employees who have worked continuously for their employer for at least 26 weeks can apply for flexible working. This is known as ‘making a statutory application’.

The basic steps of making a flexible working request for both the employee and employer are as follows:

1. The employee must write to their employer with their request for flexible working.
2. The employer will then need to consider the request within three months of it being made (or longer with the employee’s agreement).
3. If the employer agrees to the request, they must alter the terms and conditions of the employee’s employment contract to reflect this new arrangement.
4. If the employer disagrees, they must write to the employee setting out the business reasons for refusal. If an employee disagrees with this decision, there may be an opportunity to complain to an employment tribunal.

How often can I apply for flexible working?

Employees can only make one application for flexible working per year. Employees can also make a request without outlining the reasons as to why they want to make the change. However, employers must provide sound business reasons as to why a flexible working request is being refused, e.g. the arrangement would incur costs for the business.

What should I include in a flexible working request?

When an employee writes to their employer, it must be done by letter or email and include:

• The date;
• A statement which makes clear it is a statutory request;
• Details of how you wish to work flexibly and when you would like to start;
• An explanation of how you think flexible working may affect the needs of the business and how this could be dealt with (e.g. if you will not be at work on certain days); and
• A statement saying whether and when you have made a prior application for flexible working.

Your employer may have a flexible working policy and procedure so it is recommended that you follow the process set out in that policy.

Can I withdraw my application?

You should tell your employer in writing if you wish to withdraw your flexible working application.

If you miss more than two meetings to discuss the application or appeal without good reason, your employer may treat your application as withdrawn. If your employer is treating your application as withdrawn, they must inform you.

Agreeing on the application for flexible working

Employers should write to the employee with a statement of the agreed changes and an effective start date.

You must then amend the employee’s employment contract to include the new terms and conditions within 28 days of approving the request.

Can an employer reject a flexible working request?

An employer does have the right to reject applications for flexible working. If they choose to do so, they must communicate this with the employee and provide valid business reasons for doing so.

Valid reasons for rejection include:

• The arrangement would incur extra costs that will damage the business;
• The work cannot be reorganised among other staff;
• People cannot be recruited to do the work needed;
• Flexible working will affect quality and performance;
• The business will not be able to meet customer demand;
• There’s a lack of work to do during the proposed working times; and
• The business is planning changes to the workforce.

Appealing an employer’s decision

Employees no longer have a statutory right to an appeal. If they wish to make an appeal, they must follow their employer’s internal procedure for appeals and solving workplace disputes if a rejected application causes issues to arise. If there is no specific procedure then the general grievance procedure should be followed. Employees will normally find this in their staff handbook or toolkit.

Going to an employment tribunal

Employees cannot appeal to a tribunal simply because their employers have rejected their application. However, if the employee considers their employer has not handled their flexible working request properly, they could consider an employment tribunal if, for example:

• The employer did not handle the request in a ‘reasonable manner’
• They were wrongly treated the application as withdrawn
• They were dismissed or treated the employee poorly because of their flexible working request, for example, refused a promotion or pay rise
• They have been rejected an application based on incorrect facts

Employees must make their complaint to the tribunal within three months of:

• Hearing their employer’s decision;
• Hearing their request was treated as withdrawn; or
• The date the employer should have responded to their request (but failed to do so).

Contact our expert employment solicitors

If you are unsure of your rights, as either an employee or an employer, and would like some legal advice, our specialist employment solicitors can help. We work with clients across the UK from our offices in Bristol and South Gloucestershire. Call us on 0117 325 2929 or complete our online enquiry form to arrange a meeting.